John Snell v State of New South Wales

[2010] ACTSC 150

JOHN SNELL v STATE OF NEW SOUTH WALES & ORS
[2010] ACTSC 150 (19 November 2010)

CROSS VESTING – plaintiff commenced action for compensation for a disease alleged to have been contracted while the plaintiff was an employee of defendants - proceedings commenced in ACT – in the interests of justice to transfer the matter to New South Wales.

Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT), s 5(2)

Ex Tempore Judgment

No. SC 730 of 2010

Judge:             Refshauge J
Supreme Court of the ACT

Date:              19 November 2010

IN THE SUPREME COURT OF THE     )
  )          No. SC 730 of 2010
AUSTRALIAN CAPITAL TERRITORY           )

JOHN SNELL

v

STATE OF NEW SOUTH WALES & ORS

ORDER

Judge:  Refshauge J
Date:  19 November 2010
Place:  Canberra

THE COURT ORDERS THAT:

1. These proceedings be transferred to the Supreme Court of New South Wales under s 5(2) of the Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT).

1. The evidence that was taken in these proceedings including the affidavit of evidence and the oral evidence taken before me yesterday in a hospital in Canberra should be available to the Supreme Court of New South Wales or the Dust Diseases Tribunal which ever ultimately hears the proceedings.

1. On request, the Registrar of this Court forward to the proper officer of the Supreme Court of New South Wales or the Dust Diseases Tribunal of New South Wales, or both, copies of all documents filed in this court.

1. The cost of the proceedings to the date of remission are to be according to the scale applicable to proceedings in this court and, thereafter, subject to any decision of the Supreme Court of New South Wales or the Dust Diseases Tribunal of New South Wales according to the scales applicable in those courts and at the discretion of that court or tribunal.

1. The cost of transfer of the proceedings to the court or the tribunal be cost in the cause.

1. In these proceedings, the plaintiff has commenced an action for recovery of compensation for a disease alleged to have been contracted while he was an employee of the first defendant or the other defendants.

1. Originally, the proceedings were commenced in this Territory, as I understand it, because his treating doctors and other relevant personnel were in or around Canberra.  It now appears that it is appropriate, having regard to his situation, that the matter be transferred to New South Wales with the expectation that it may well join proceedings that have been commenced in the Dust Diseases Tribunal of that state.

1. Accordingly, I am satisfied under s 5(2) of the Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT) that it is in the interests of justice that the proceedings be determined by the Supreme Court of New South Wales.

1. Accordingly, I order:

i.that the proceedings be transferred to the Supreme Court of New South Wales under s 5(2) of the Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT);

ii.that the evidence that was taken in these proceedings including the affidavit of evidence and the oral evidence taken before me yesterday in a hospital in Canberra should be available to the Supreme Court of New South Wales or the Dust Diseases Tribunal which ultimately hears the proceedings;

iii.that on request, the Registrar of this Court forward to the proper officer of the Supreme Court of New South Wales or the Dust Diseases Tribunal of New South Wales, or both, copies of all documents filed in this court;

iv.that the cost of the proceedings to the date of remission are to be according to the scale applicable to proceedings in this court and, thereafter, subject to any decision of the Supreme Court of New South Wales or the Dust Diseases Tribunal of New South Wales according to the scales applicable in those courts and at the discretion of that court or tribunal; and

v.that the cost of transfer of the proceedings to the court or the tribunal be cost in the cause.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Associate:

Date:          29 November  2010

Counsel for the Plaintiff:  Ms A Burke
Solicitor for the Plaintiff:  Ken Cush & Associates
Date of hearing:  19 November 2010
Date of judgment:  19 November  2010